TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions of Service (the “Terms and Conditions”) govern use of the services (the “Services”) of Indus.ai, Inc. and its affiliates (together, the “Company”). By using the the Company’s Services, you (the “Customer”) agree to be bound by these Terms and Conditions, and the applicable Order Form. These Terms and Conditions, together with any applicable Order Form, constitute a legal binding agreement between Customer and the Company (the “Agreement”). The Company and Customer may be referred to herein each a “Party” and together as the “Parties.” Capitalized terms not otherwise defined herein are defined in Exhibit A hereto.
SECTION 1: ORDER FORMS; TERM
1.1 Order Forms. For the Construction Site(s) for which Services will be provided, the Company and Customer will complete an order form (“Order Form”). In the event of a conflict between an Order Form and these Terms and Conditions, these Terms and Conditions will govern, unless the Order Form expressly overrides a provision of these Terms and Conditions by specific reference to the applicable section of these Terms and Conditions.
1.2 Term. The term of an Order Form (the “Term”) shall be as set forth in the Order Form.
SECTION 2: SOFTWARE AS SERVICE
2.1 Grant of Rights. The Company hereby grants Customer a limited, non-exclusive, non-transferrable right to access and use the software as services identified in the Order Form (the “Software Services”) for the sole purpose of monitoring and analyzing activities at the Construction Site, subject to these Terms and Conditions and the applicable Order Form. The Company will be responsible for arranging for the remote hosting of the the Software Services, and will provide Customer with the required username and password. Customer shall pay the SaaS fees for the Software Services as set forth on the applicable Order Form. Customer shall be responsible for all use of the of the Software Services using Customer’s username and password. If specified in the applicable Order Form, Customer shall have the right to export video, and related data, from the Construction Site(s) into its own systems, and the Parties shall reasonably cooperate to enable such transfer.
2.2 Use Restrictions
(a) Copying and Modification. Customer shall not copy or modify any aspect of the Software Services, except as expressly permitted in this Agreement. Customer will not alter any trademark, copyright notice, or other proprietary notice on the Software Services or Documentation.
(b) Permitted Users. The Software Services may only be used by Permitted Users of the Customer, which may include 3rd parties associated with Customer and participating at the Construction Site.
(c) Ownership of The Company Software Services. The Company is and shall remain the sole and exclusive owner of the Software Services, and all intellectual property rights therein, and Customer shall have only the right to use the Software Services on the terms set forth herein and in the applicable Order Form.
(d) Other Restrictions. Customer shall not, and shall not authorize any third-party to: (i) materially alter any part of the Software Services; (ii) reverse assemble or reverse compile the Software Services; (iii) create any derivative works from or enhancements to the Software Services (and any such derivative works or enhancements shall be owned by the Company); or (iv) use the Software Services to provide service bureau or other similar services.
2.3 Warranty. The Company warrants that (a) the Software Services will perform substantially in accordance with the applicable functional specifications set forth in the Documentation, and (b) the Company has the authority to license use of the Software Services.
THE WARRANTIES IN THIS SECTION 2.3 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED. THE COMPANY DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL YIELD ANY PARTICULAR BUSINESS OR FINANCIAL RESULT OR THAT THE SERVICES WILL BE PERFORMED WITHOUT ERROR OR INTERRUPTION. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR THE COMPANY’S BREACH OF ANY WARRANTY WILL BE THE REPAIR, REPLACEMENT, OR RE-PERFORMANCE BY THE COMPANY OF THE NONCONFORMING SERVICE. THE COMPANY DOES NOT REPRESENT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
SECTION 3: OTHER SERVICES
3.1 Equipment. If agreed to in the applicable Order Form and subject to applicable fees set forth in the Order Form, the Company will provide and install cameras and other equipment (collectively, the “Equipment”) for monitoring the Construction Site. The Equipment will at all times remain owned by the Company, unless otherwise set forth in the Order Form. The Equipment will be located at mutually acceptable locations at the Construction Site, and shall not be moved or accessed by Customer except with the prior written consent of the Company. Customer shall be responsible for maintaining the security of the Equipment at the Construction Site. In the event of the damage or destruction of the Equipment while at the Construction Site (except to the extent caused by the Company or its agents), Customer will promptly reimburse the Company for the cost of such Equipment or its repair upon the Company’s invoice therefor. Unless otherwise set forth in the applicable Order Form, the Company will be responsible for maintaining and repairing the Equipment as required for the Maintenance Fees, if any, specified in the Order Form. Customer will provide the Company and its agents with access to the Construction Site during regular business hours for the purpose of installing, maintaining or removing the Equipment. Upon expiration or termination of the applicable Order Form, Customer shall return the Equipment to the Company.
3.2 Implementation and Maintenance Services. If specified in an Order Form, and subject to payment of applicable fees, Implementation Services and/or Maintenance Services will be provided by The Company.
3.3 Other Services. Any additional Services required by Customer shall be as set forth in the applicable Order Form.
SECTION 4: PAYMENT
4.1 Invoicing Terms. Customer will pay all fees and other charges in U.S. dollars within thirty (30) days after invoice date. Invoices may be issued by the Company or any the Company’s affiliates.
4.2 Taxes. All amounts payable for the Services are exclusive of sales, use, value-added, withholding, and other taxes and duties (except for taxes payable on the Company’s net income). Customer will promptly pay, and indemnify the Company against, all such taxes and duties, unless Customer provides the Company with satisfactory evidence of an applicable tax exemption prior to the Order Form Effective Date.
4.3 Late Payments. The Company may charge Customer interest on any undisputed overdue fees, charges, or expenses at a rate equal to the lesser of 1.5% per month or the highest rate permitted by law. Customer will reimburse the Company for all reasonable costs and expenses incurred (including reasonable attorney’s fees) in collecting any undisputed overdue amounts. If Customer does not pay undisputed fees, charges, or expenses when due, then the Company may require reasonable advance payments as a condition to providing Services.
4.7 Suspension of Services. The Company reserves the right to suspend provision of any Services (a) ten (10) days after notice to Customer of nonpayment of undisputed sums owed to the Company that are thirty (30) days or more past due, where such breach remains uncured, or (b) if such suspension is necessary to comply with any applicable law or order of any governmental authority.
SECTION 5: GENERAL TERMS
5.1 Confidentiality and Proprietary Rights.
(a) Use and Disclosure of Confidential Information. Each Party may disclose to the other Party Confidential Information. Except as expressly permitted by this Agreement, neither Party will: (a) disclose the other party’s Confidential Information except (i) to its employees or contractors who have a need to know and are bound by confidentiality terms no less restrictive than those contained in this Section 5.1, or (ii) to the extent required by law following prompt notice of such obligation to the other Party, or (iii) use the other party’s Confidential Information for any purpose other than performing its obligations under this Agreement, except as set forth herein. Each Party will use all reasonable care and handling and securing the other Party’s Confidential Information and will employ all security measures used for its own proprietary information of similar nature. Following the expiration or earlier termination of this Agreement, each Party will, upon written request, return or destroy all of the other Party’s tangible Confidential Information in its possession and will promptly certify in writing to the other Party that it has done so.
(b) Period of Confidentiality. The restrictions on use, disclosure and reproduction of Confidential Information set forth in Section 5.1 will, with respect Confidential Information that constitutes a “trade secret” (as that term is defined under applicable law), be extended, and will, with respect to other Confidential Information, remain in full force and effect following the termination of this Agreement.
(c) Injunctive Relief. The parties agree that the breach, or threatened breach, of any provision of this Section 5.1 may cause irreparable harm without adequate remedy at law. Upon any such breach or threatened breach, a Party will be entitled to injunctive relief to prevent the other Party from commencing or continuing any action constituting such breach, without having to post a bond or other security and without having to prove the inadequacy of other available remedies. Nothing in this Section 5.1(c) will limit any other remedy available to either party.
(d) Retained Rights. Customer’s rights and the Services will be limited to those expressly granted in this Agreement. The Company and it suppliers reserve all intellectual property rights not expressly granted to Customer. All changes, modifications, improvements or new modules made or developed with regard to the Services, whether or not (a) made or developed at Customer’s request, (b) made or developed in cooperation with Customer, or (c) made or developed by Customer, will be solely owned by The Company or its suppliers.
5.2 Company Indemnification.
(a) Duty to Defend. The Company will defend, indemnify, and hold Customer harmless from any action or other proceeding brought by a third party against Customer to the extent that it is based on a claim that (1) the use of any Software Services delivered under this Agreement infringes any U.S. copyright or U.S. patent; (2) the Software Services incorporate any misappropriated trade secrets; or (3) any claims by third-parties resulting from or arising out of the Company’s employees gross negligence or willful misconduct in performing any Services. The Company will pay costs, including reasonable attorney’s fees, and damages finally awarded against Customer as a result thereof; provided, that Customer (i) notifies the Company of the claim within ten (10) business days of discovery of the injury, (ii) provides the Company with all reasonably requested cooperation, information and assistance, and (iii) gives the Company sole authority to defend and settle the claim, provided that the consent of Customer (not to be unreasonably withheld) shall be required for any settlement that imposes a material monetary obligation on Customer.
(b) Exclusions. The Company will have no obligations under Section 5.2(a) with respect to claims arising from: (i) Software Services modifications that were not performed by the Company or authorized by the Company in writing, (ii) custom interfaces, file conversions, or other programming for which the Company does not exclusively develop the specifications or instructions, (iii) use of any Software Services in combination with products or services not provided by the Company, if use of the the Software Services alone would not result in liability under Section 5.2(a), or (iv) any use of the Software Services not authorized by this Agreement.
(c) Infringement Remedies. If a claim of infringement or misappropriation for which Customer is entitled to be indemnified under Section 5.2(a) arises, then the Company may, at its sole option and expense: (i) obtain for Customer the right to continue using such Software Services, (ii) replace or modify such Software Services to avoid such a claim, provided that the replaced or modified Software Services are substantially equivalent in function to the affected Software Services, or (iii) terminate Customer’s rights and the Company’s obligations under this Agreement with respect to such Software Services. Upon any such termination, the Company will refund to Customer a prorated portion of the fees paid for the Software Services.
(d) Exclusive Remedy. THE FOREGOING ARE THE COMPANY’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION.
5.3 Customer Indemnification.
(a) Duty to Defend. Customer will defend, indemnify, and hold the Company harmless from any action or other proceeding brought by a third party against the Company to the extent that it is based on (a) Customer’s use of the Services, or (b) Customer’s breach of this Agreement. Customer will pay costs and damages (including attorneys’ fees) incurred by the Company as a result thereof; provided, that the Company (i) notifies Customer of the claim within ten (10) business days, (ii) provides Customer with all reasonably requested cooperation, information and assistance, and (iii) gives Customer the authority to defend and settle the claim, provided that the consent of the Company (not to be unreasonable withheld) shall be required for any settlement that imposes a material monetary obligation on The Company.
(b) Exclusions. Customer will have no obligations under Section 5.3(a) with respect to claims to the extent arising from: (i) matters for which the Company is required to indemnify Customer pursuant to Section 5.2, or (ii) the gross negligence or willful misconduct of The Company.
5.4 Limitation of Liability
(a) IN NO EVENT WILL THE COMPANY OR CUSTOMER BE LIABLE TO UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(b) Material Consideration. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS ARE A MATERIAL CONDITION FOR THEIR ENTRY INTO THIS AGREEMENT.
5.5 Internet Disclaimer. CERTAIN SERVICES PROVIDED BY THE COMPANY UTILIZE THE INTERNET. THE COMPANY DOES NOT WARRANT THAT SUCH SERVICES WILL BE UNINTERRUPTED, ERROR – FREE, OR COMPLETELY SECURE. THE COMPANY DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE CUSTOMER’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ACCORDINGLY, THE COMPANY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE ABOVE EVENTS.
(a) Termination for Cause. A Party may terminate this Agreement or any Order Form immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement or such Order Form and fails to remedy, or fails to commence reasonable efforts to remedy, such breach within thirty (30) days after receiving notice of the breach from the terminating Party, (ii) infringes the terminating Party’s intellectual property rights and fails to remedy, or fails to commence reasonable efforts to remedy, such breach within ten (10) days after receiving notice of the breach from the terminating Party, (iii) materially breaches this Agreement or such Order Form in a manner that cannot be remedied, or (iv) commences dissolution proceedings or ceases to operate in the ordinary course of business. The right to terminate an Order Form shall otherwise be as set forth in the Order Form.
(b) Obligations upon Termination or Expiration. Upon the termination or expiration of this Agreement, Customer will promptly lose access to using all Software Services and shall promptly return the Equipment to The Company.
(c) Survival of Provisions. Those provisions of this Agreement that, by their nature, are intended to survive termination or expiration of this Agreement will remain in full force and effect, including, without limitation, the following Sections of this Agreement: 4 (Payment) and 5 (General Terms).
5.7 Customer Data; Analytics. Customer shall be the owner of the video data from Customer’s Construction Site(s) (the “Customer Data”). The Company reserves the right to use the Customer Data for marketing purposes with written approval from Customer. The Company shall be the owner of the analytics and reports developed from Customer Data using the Software Services (the “Analytics”), and Customer shall only have the right to use such Analytics subject to the terms of these Terms and Conditions and the applicable Order Form. The Company shall be entitled to use aggregated Customer Data and Analytics to perform its obligations hereunder and for its own business purposes (including following expiration or termination of the Order Form), provided that such use (a) does not identify the Customer or any Construction Site, and (b) complies with applicable laws. Upon termination or expiration of an Order Form, The Company will make a copy of the Customer Data covered by the Order Form available to the Customer on mutually acceptable terms, which may include charges for continuing to maintain Customer access to the Customer Data on the Company’s systems.
5.8 Governing Law. This Agreement is governed by and will be construed in accordance with the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws and any version of the Uniform Commercial Code. Each party agrees that exclusive venue for all actions, relating in any manner to this Agreement will be in federal or state court of competent jurisdiction located in San Francisco County, California.
5.9 Assignment and Subcontracts. Customer will not assign this Agreement without the prior written consent of the Company, which consent will not be unreasonably withheld. The Company may, upon notice to Customer, assign this Agreement to any affiliate or to any entity resulting from the transfer of all or substantially all of The Company’s assets or capital stock or from any other corporate reorganization or merger. The Company may subcontract its obligations under this Agreement.
5.10 Severability. If any part of a provision of this Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this Agreement will not be affected.
5.11 Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (a) personal delivery to the party to be notified, (b) when sent, if sent by electronic mail or facsimile during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All communications shall be sent to the respective parties at their address as set forth on the signature page, or to such e-mail address, facsimile number or address as subsequently modified by written notice given in accordance with this Section 5.12.
5.12. Waiver. Failure to exercise or enforce any right under this Agreement will not act as a waiver of such right.
5.13 Force Majeure. Except for the obligation to pay money, a party will not be liable to the other party for any failure or delay caused by a Force Majeure Event, whether or not such matters were foreseeable, and such failure or delay will not constitute a material breach of this Agreement.
5.14 Updates. The Company may update the Terms and Conditions from time to time by written notice to Customer, which may be given by email to the email address of Customer set forth in the Order Form. Customer will be responsible for ensuring compliance with the updated Terms and Conditions.
5.15 No Third Party Beneficiaries. Except as specifically set forth in and Order Form, nothing in this Agreement will convert any right, remedy, or obligation upon anyone other than Customer and the Company.
5.16 Relationship of Parties. Each party is an independent contractor of the other party. This Agreement will not be construed as constituting a relationship of employment, agency, partnership, joint venture or any other form of legal association. Neither Party has any power to bind the other Party or to assume or to create any obligation or responsibility on behalf of the other Party or any other Party’s name.
5.17 Non-solicitation of Employees. Neither Party will directly or indirectly solicit for employment any employee of the other Party during the Term of this Agreement and for a period of one (1) year thereafter without the written consent of the other Party. This prohibition will not apply if an employee answers a party’s notice of a job listing or opening, advertisement or similar general publication of a job search or availability for employment.
5.18 Publicity. The Parties may publicly announce that they have entered into this Agreement and describe their relationship in general terms, excluding financial terms. Neither Party will make any other public announcement or press release regarding this Agreement nor any activities performed hereunder without the prior written consent of the other Party.
5.19 Construction of Agreement. This Agreement will not be presumptively construed for or against either Party. Section titles are for convenience only. As used in this Agreement, “will” means “shall,” and “include” means “Includes without limitation.”
5.20 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. Federal ESIGN Act of 2000) or other transmission.
5.21 Entire Agreement. The Order form and these Terms and Conditions, including the Exhibits hereto and documents incorporated by reference, represent the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all the prior agreements, communications and understandings (written and oral) regarding its subject matter.